Thursday, February 28, 2013

"Critical Area Regulations"

Snohomish county has a dwindling number of farms; over time, the county that I live in and farm in is becoming a bedroom community for people who live and work in King County, and for people who work at various industries in Snohomish county itself, like Boeing.

Both the state and local government are very interested in regulating land use, and in particular, those areas that contain water, are adjacent to water, have contained water in the past, might contain water in the future. Since this regulation is very important to the local agencies, they always name it something urgent. In this case its "critical areas". Water is the key element here, and since we get a lot of rainfall, this basically means all land.

Farmers tend to own or use large tracts of land; by regulating the use of farmland, you get more bang for your buck, as far as these agencies are concerned. There are also fewer voters. If you pass a regulation on farmland, you get to control 100 acres and 1 voter. If you pass a regulation on houses, you get 1/16th or less of an acre, and thousands of voters. And thousands of angry voters can vote you out. 1 angry voter doesn't have much of a voice.

Most of the available farm land that is economically viable for farmers is in the river flood plains, some protected by dikes, some not, and all of it is considered "shoreline", no matter how far it is from the water. Most if it is also considered wetland, or, in the language of these rules, "critical areas"

So a lot of regulatory effort is actually aimed directly at farmers and farmland because it's easy, and cheap, and the people you're regulating don't have much of a voice, generally speaking.

The audience are mostly people who are actively growing food (animal and vegetable) or operating agritourism businesses in Snohomish county. Many of the people in the room had tens or hundreds of acres of land that they farmed, and a couple had a thousand or more. This meeting, and these regulations, directly affected all of them. It was hosted at Swans Trail Farm, a farm that specializes in agritourism and hosts weddings and meetings and so on.

One of the biggest things that farmers hate about the current regulations is that they specify large, fixed-sized buffers between things that take permits, like building a barn, and "critical areas"/wetlands, which are defined as... well, in my experience, it's pretty much anywhere the county doesn't want you to do something. Yes, there's some talk about "wetland indicator plants" and "wetland soil conditions" and "standing water during the growing season", but it boils down to the fact that most of the time you have to prove your land isn't a wetland or critical area, via consultant usually, for thousands of dollars, before you can be issued a permit to do anything. Fixing your driveway? Prove that it's not a wetland. Want to build a loafing shed? Could be a wetland under it. Prove that it's not. Not sure what a wetland is? You have to hire a qualified wetland biologist to say whether it is, or is not, a wetland. What's a qualified wetland biologist? See below.

Part of the reason that it's set up this way is that it is very popular with folks who work in the industry. There's a pretty sizeable payroll of wildlife/wetland biologists and consultants to help you write things like a "Salmonid species and resident killer whale habitat plan", and they're overjoyed to do that for you at $3,000 a pop. there are classes to teach people how to become killer whale consultants. there are continuing education credits for it. And there's money to be made on this whole industry that has sprung up around these regulations. There's your money to be made. All of this stuff increases the cost of your farming operation, and all of it slows down anything you want to do with your land or your farm.

One of the biggest risks that you run when you start down the wetland biologist path, is that the State Department of Ecology can deem your land to be "constructively abandoned" and decide that the entire area is now a wetland and can no longer be farmed at all. It happened to me, folks. I lost 25% of my acreage on one parcel exactly this way. I'd be very careful about biologists, and I'd be particularly careful to be out on that land tilling or mowing or otherwise working it. Cut down any tree that approaches 6" in diameter - if they're bigger than that they're deemed evidence that you've abandoned the land. Mow all plants down regularly. Consider spraying everything with a herbicide if you can't mow it. If you don't do this, you can lose the ability to farm your land, and probably most of the value of that land, too.

The regulations that they're changing are the county regulations. These have no effect on the regulations that the Washington State Department of Ecology enforces, or the regulations that the Army Corps of Engineers enforces, or the regulations that the Snohomish County Surface Water Management department enforces. So if you're contemplating some farming related thing, you may have to coordinate and appease multiple overlapping regulatory agencies before you can do anything, under either the existing regulations or the new, proposed regulations. Even if you comply with county regulations they offer no defense to these other agencies. Being square with the county is only the first step, not the last when it comes to regulations.

Now to be fair, all of these same laws apply to things like single family houses; in theory, if you have a wetland in your backyard, you're supposed to go through the same process, but in practice, that's too many voters, and too little land, and there is effectively no enforcement of these issues past the issuance of a building permit. So if you've got a wetland in your backyard, you can probably cover it in a concrete patio. But farmland is monitored for compliance, and there are reports on "environmental degradation", because, well, we gotta save the environment. No matter what the cost, especially if we (the people regulating this stuff) don't have to pay the bill. Lets soak the farmers with the costs to comply with all of these regulations -- they are made of money, after all.

So during this talk they said that if you had a wetland in the 5,000 to 10,000 square foot size that you could probably farm it, but as I pointed out, I could jump over a 5,000 square foot wetland. That's 1/8th of an acre. In terms of farming acreage, this stuff is basically meaningless; it doesn't do the average farmer any good. So I personally took no comfort from it.

The new regulations allow you to to use "best management practices" to qualify for permits for things on your farm. So in the old system you'd have a fixed-sized buffer, say 150', between you and wetlands. Buffers range in size from tens to hundreds of feet wide. Under the new regulations, if you use a farm plan or BMPs (Best Management Practices) you'll be able to place a barn inside the buffer. That sounds good, right? Be able to use more of your land, place buildings and infrastructure where you need them, and generally speaking farm with less interference.

Well, sort of.

What they're doing here is adding an additional agency, the Snohomish County Conservation Distrct, into the mix. They're saying that you can have a farm plan developed by this agency, and that PDS only needs to see that portion of your farm plan that covers the wetlands, and that this farm plan will then allow you to get your permit. And the farm plan will be developed using "best management practices", as listed in the USDA Field office Technical Guide.

Now there's some language that says you can use "other" practices that are considered "best", but in practice that usually means a fight, and that means legal fees and delays, and as someone who's paid my fair share of legal fees and endured my fair share of delays, the bottom line is that if it's not in the manual forget it unless you have money to burn.

I asked the audience at this meeting, about 60 people who are actively involved in agriculture, how many had read that manual, or had any idea about the proposed "best management practices that they may be required to perform to get a permit".

None. Not one farmer had any idea what they were being asked to agree to.

Here's how it works: You want to build a barn. You go and apply for a permit. Maybe there's wetlands, maybe not. You may end up having to hire a wetland biologist to figure it out -- because they won't take your word for it, you only own the land, you're not a member of the green money machine. That wetland biologist may, or may not, turn you into multiple agencies either during, or after the work. As a private citizen, they're allowed to report anything they want to any regulatory agency they'd like. Be nice to your wetland biologist. It's a little like that old mafia line... "gosh, you sure have a nice farm here. It's be a real shame if it got all covered with regulators and fines and stuff.... a real shame"

So if you don't want to have that fight, you could just assume that there are wetlands. Now you contact the Snohomish Conservation district and over the course of a few weeks or months, you work out a farm plan with them, and part of that farm plan will require various practices and procedures which have been deemed "best". In truth, many of these are currently used, some are not, some are expensive, some are not. My point here is that you don't find out what you're going to be asked to do until you get into this process, and you WILL NOT be issued a permit unless you go through this process. And once you're done with it any regulatory agency that wants to can supeona that document and use it against you. The portion of that document that you submit to PDS becomes a public record that can be viewed by anyone who wants to submit a public disclosure request. So when you're working on your farm plan you have to consider that it's all going to be public, or could become public. But we'd all be ok with everyone knowing everything about our farm, or the way we are organized, or our practices and future plans. Right?

This new regulation is doing what is referred to by attorneys as "inclusion by reference". The biggest change in the current regulations is that you are going to be required to adhere to a new set of rules that you don't know anything about, as a condition of getting any permit of any sort from the county.

There's a term -- "buying a pig in a poke", which is basically buying a pig in a sack. You hope that it's a good pig in that sack, but you aren't going to see it before you pay your money.